ELLINGTON

Matthew Ray Brooks, Atlanta, for Appellant. Bret Thomas Thrasher, Aaron Marcus Kappler, Norcross, for Appellee.
ELLINGTON, Chief Judge.

HWA Properties, Inc. (“HWA”) and Harry Albright (collectively, “the appellants”) appeal from an order of the Superior Court of Fulton County granting summary judgment to Community & Southern Bank (“CSB”) and awarding the bank a judgment on its suit to collect on a note and a guaranty. The appellants contend that the trial court erred in ruling in favor of CSB, arguing that CSB failed to prove that it was entitled to enforce the note or the guaranty. They also assert that the court erred in awarding CSB a “deficiency judgment” for the difference between the amount due on the note and the proceeds of the nonjudicial foreclosure sale of certain collateral, arguing that this Court recently reversed a separate order confirming the foreclosure sale. For the following reasons, we affirm the court's order as to Albright's liability on his unconditional personal guaranty of the note, but reverse as to HWA's liability for a deficiency judgment on the note.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citations and punctuation omitted.) White v. Ga. Power Co., 265 Ga.App. 664, 664–665, 595 S.E.2d 353 (2004).

Viewed in this light, the record shows the following undisputed facts. In June 2008, HWA and Appalachian Community Bank executed a note for approximately $4 million. The note was secured by about 188 acres of real property in Fannin County, as well as a contemporaneous, unconditional, personal guaranty executed by Albright. In October 2008, HWA renewed the note for a smaller principal balance of approximately $2.7 million. The renewed note matured on October 24, 2009, but HWA defaulted on the entire principal balance.

In February 2010, Appalachian Community Bank sued HWA on the note and Albright on his guaranty in Fulton County. In May 2010, Appalachian Community Bank filed a motion to substitute CSB as the party plaintiff, attaching a March 19, 2010 Gilmer County consent order appointing the Federal Deposit Insurance Corporation (“FDIC”) receiver of the former bank's business and property, as well as the purchase and assumption agreement of the former bank by CSB, executed the same day. The appellants did not object to the motion or challenge the supporting documents on the basis that they constituted hearsay or were not authenticated. The trial court granted the motion and substituted CSB as the “real party plaintiff in interest” in this action, based upon its finding that CSB was “the successor in interest to the Federal Deposit Insurance Corporation as receiver for Appalachian Community Bank[.]”

Over the next 16 months, the appellants did not move to set aside the substitution order. Then, in September 2011, they filed a joint answer to the suit, admitting, inter alia, that Albright had executed the renewed note on behalf of HWA and his personal guaranty, that the principal amount of the note was $2,683,534, and that HWA had defaulted on the note. The appellants challenged CSB's right to collect on the note, however, asserting that CSB was not the payee on the note nor the named beneficiary of the guaranty.

On November 1, 2011, while the suit on the note was pending in Fulton County, CSB conducted a nonjudicial foreclosure sale of the Fannin County real property that had secured the note, and the property was sold for $1.59 million. Following a hearing on the confirmation petition filed by CSB, the Superior Court of Fannin County entered a foreclosure confirmation order on March 28, 2012. The appellants appealed the order the same day (hereinafter, “the confirmation appeal”), contending that the Fannin County court improperly relied on inadmissible hearsay in finding that the foreclosure sale brought the fair market value of the property. See HWA Properties v. Community & Southern Bank, 320 Ga.App. 334, 739 S.E.2d 770 (2013). Despite their earlier claim that CSB was not the payee on the note, however, the appellants never sought to set aside the foreclosure sale of the property that had secured the note, nor did they file suit against CSB for wrongful foreclosure.

While the confirmation appeal was pending in this Court, CSB moved for summary judgment in the Fulton County suit on the note and the guaranty, asserting that it was entitled to a judgment for the difference between the amount due on the note and the proceeds of the foreclosure sale. According to CSB, after it applied the foreclosure proceeds to the outstanding balance on the note, the remaining principal balance was approximately $1.09 million, plus interest on the note, fees and other expenses. In response to the summary judgment motion, the appellants filed a motion to stay the trial court's consideration of CSB's motion until this Court issued a ruling in the confirmation appeal.

On June 7, 2012, the Fulton County trial court entered an order in which it denied the appellants' motion to stay the proceedings pending the confirmation appeal. It also granted CSB's motion for summary judgment, reasserting its earlier conclusion that CSB was the real party plaintiff in interest in this action. Further, because it was undisputed that Albright had executed the $2.7 million renewed note on behalf of HWA, that he had executed his unconditional personal guaranty of the note, and that HWA had defaulted on the note, the court awarded CSB a judgment for the amount of the difference between the proceeds of the foreclosure sale and the total amount of principal due on the note. According to the court, the difference at that time was $1,093,534.38 in principal, plus interest on the note, late fees, expenses, and attorney fees. The appellants timely appealed the summary judgment order (hereinafter, “the instant appeal”).

Then, on March 13, 2013, while the instant appeal was pending, this Court issued a ruling in the confirmation appeal in which we reversed the confirmation order based upon our conclusion that the Fannin County trial court had improperly relied upon inadmissible hearsay and that there was insufficient competent evidence to support a finding that the foreclosure sale brought the fair market value of the property. HWA Properties v. Community & Southern Bank, 320 Ga.App. at 334, 739 S.E.2d 770. The appellants immediately filed a supplemental appellate brief in the instant appeal in which they asserted that, as a result of this Court's reversal of the Fannin County foreclosure confirmation order, the Fulton County trial court's order granting summary judgment in favor of CSB must also be reversed.

1. The appellants contend that the trial court erred in granting summary judgment to CSB without sufficient competent evidence that CSB was entitled to enforce the note or guaranty. Specifically, they argue that there was no evidence that CSB was either a “holder” or “nonholder in possession of the instrument” under Georgia's Uniform Commercial Code, OCGA § 11–3–101 et seq. (“Commercial Code”). They also argue that the court erred in considering the “unsworn” purchase and assumption agreement between the FDIC and CSB that was attached to the motion to substitute CSB as the party plaintiff.

As an initial matter, the record shows that the Georgia Department of Banking and Finance (the “Department”) took possession of Appalachian Community Bank in March 2010. The Department filed a petition for the appointment of the FDIC as receiver of the business and property of Appalachian Community Bank, and the Superior Court of Gilmer County granted a consent order naming the FDIC as the receiver, pursuant to 12 USC § 1821. On March 19, 2010, CSB acquired all of the assets of Appalachian Community Bank from the FDIC. The record includes copies of the consent order and the purchase and acquisition agreement, as well as copies of the note and guaranty at issue in this case.

(a) Turning to the appellants' arguments on appeal, the record shows that the appellants failed to raise any issue about CSB's status as a holder or nonholder in possession of the note and guaranty under the Commercial Code, or to even refer to any statutes within the Code, in the court below. Further, the appellants failed to object to the court's consideration of either the consent order naming FDIC as the receiver or the purchase and assumption agreement on the basis that they were unsworn documents, constituted hearsay, or were otherwise not authenticated. Because the appellants failed to raise and elicit rulings on these issues in the trial court, these issues have been waived. See West v. State, 300 Ga.App. 583, 585(2), 685 S.E.2d 486 (2009) ( “Issues and objections not raised in the trial court and ruled on by the trial court are deemed waived and cannot be raised for the first time on appeal.”) (footnote omitted).

(b) Further, even though the appellants would have been entitled to a judgment instanter in the suit if they were able to obtain a ruling that CSB was not the real party in interest in the suit, they did not object or respond to the motion to substitute CSB as the real party in interest, pursuant to OCGA § 9–11–25(c), nor did they move to set aside the trial court's order granting that motion. In fact, the appellants waited 16 months before first raising the issue of CSB's standing in their answer to the complaint. In addition, the appellants did not seek an interlocutory appeal from the substitution order, nor did they object to CSB's foreclosure of the property securing the note or its application of the foreclosure proceeds to their indebtedness while the instant suit was pending.

Thus, pretermitting whether the appellants are correct in asserting that the trial court's substitution of CSB as the real party in interest, pursuant to OCGA § 9–11–25(c), was simply an administrative procedure and not a binding substantive determination that CSB was, in fact, the holder of the note and guaranty, their failure to timely challenge the substitution order or the actions CSB took in reliance on that order supports a finding that they acquiesced to the substitution of CSB as the real party in interest. It is axiomatic that a party cannot simply sit on its hands and acquiesce in the trial court's procedural decisions and then complain about such decisions later. Davis v. Phoebe Putney Health Systems, 280 Ga.App. 505, 506(1), 634 S.E.2d 452 (2006).

(c) The appellants also contend that CSB failed to present any evidence to show that, when it (CSB) purchased the assets of Appalachian Community Bank, it acquired the specific note and guaranty at issue in this case. They argue that, because the purchase and acquisition agreement in the record does not specifically identify the note and guaranty at issue here among the assets that CSB acquired in the transaction, the note and guaranty may not have been transferred to CSB but, instead, may have been transferred by Appalachian Community Bank to a different entity before CSB acquired its assets.

However, when Appalachian Community Bank sued the appellants to collect on the note and guaranty in February 2010, the appellants did not challenge its standing to do so. And, when the FDIC was appointed the receiver in March 2010, it succeeded to all of the rights and titles to the books, records, and assets of the bank, pursuant to 12 USC § 1821(d)(2)(A). Further, on the cover of the March 19, 2010 purchase and assumption agreement between the FDIC and CSB, the phrases “ WHOLE BANK ” and “ ALL DEPOSITS ” were printed in bold, capital letters. (Emphasis in original.)

Moreover, the affidavit of an officer of CSB's Special Assets Department states that CSB is “ the successor in interest to the [FDIC] as receiver for Appalachian Community Bank,” that he has “personal knowledge of the account of [HWA] and the business records of Appalachian Community Bank and CSB,” that the copies of the note and guaranty that are attached to the affidavit are “true and correct” copies of the documents at issue and “are business records of Appalachian Community Bank and CSB”; and that the “ originals [of the documents are] in the possession of Appalachian Community Bank and CSB.” (Emphasis supplied.)

Given this affirmative and uncontradicted evidence of CSB's acquisition and actual possession of the note and guaranty at issue here, the appellants' unsupported assertion that the CSB may not have acquired the note and guaranty when it acquired Appalachian Community Bank's assets constitutes mere speculation or conjecture that is insufficient to defeat CSB's motion for summary judgment. See OCGA § 9–11–56(e) (When a party moves for summary judgment and supports his or her motion by submitting affidavits, depositions, or answers to interrogatories, the opposing party “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”); Isbell v. Credit Nation Lending Svc., 319 Ga.App. 19, 25(2)(a)(ii), 735 S.E.2d 46 (2012) ( “Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.”) (citation and punctuation omitted); Mimick Motor Co. v. Moore, 248 Ga.App. 297, 299(1)(b), 546 S.E.2d 533 (2001) (“Bare conclusions and contentions unsupported by an evidentiary basis in fact are insufficient to oppose a motion for summary judgment.”) (citation omitted).

(d) Finally, it is undisputed that both the original $4.1 million note and the $2.7 million renewed note identify the “Lender” as Appalachian Community Bank and “its successors and assigns.” Similarly, the guaranty identifies the “Lender” as Appalachian Community Bank and its “participants, successors and assigns,” and it states that it is binding upon Albright and “shall inure to the benefit of Lender and its participants, successors and assigns.”

Accordingly, given the evidence presented, we find no error in the trial court's conclusion that CSB was the real party in interest with standing to enforce the note and guaranty in the instant suit.

2. The appellants contend that, because this Court reversed the Fannin County foreclosure confirmation order, we must likewise reverse the Fulton County court's order granting summary judgment to CSB in the instant suit on the note and guaranty. Specifically, they argue that, because CSB's foreclosure sale of the property securing the note was not validly confirmed, CSB was not entitled to a “deficiency judgment” against them, pursuant to OCGA § 44–14–161(a). They contend that, as a result, the court was not authorized to award CSB a judgment for the difference between the amount due on the note and the foreclosure sale price.

(a) We agree with the appellants that HWA can no longer be deemed liable for a deficiency judgment on the note due to this Court's reversal of the judicial confirmation of CSB's foreclosure sale of the real property that secured the note.

A creditor who holds a promissory note secured by a deed is not put to an election of remedies as to whether he shall sue upon the note or exercise a power of sale contained in the deed, but he may do either, or pursue both remedies concurrently until the debt is satisfied. Although concurrent pursuit of both remedies is not barred, it is nevertheless clear that if it is the foreclosure remedy that is pursued to an initial conclusion, the creditor must then comply with OCGA § 44–14–161 so as to retain the right of continued pursuit of his remedy of obtaining a judgment against the debtor.... Continuing to pursue a lawsuit on a promissory note after the foreclosure proceedings have been concluded obviously constitutes “action” on the part of the creditor to obtain a deficiency judgment against the debtor [under OCGA § 44–14–161(a) ].
(Citations and punctuation omitted; emphasis in original.) Vaughan v. Moore, 202 Ga.App. 592, 592–593, 415 S.E.2d 47 (1992) (physical precedent only).

Thus, because CSB did not obtain a judgment on the note against HWA prior to the foreclosure sale, it was required to comply with the confirmation requirements of OCGA § 44–14–161 in order to obtain a deficiency judgment on the note. See id. at 593, 415 S.E.2d 47. Because this Court has reversed the confirmation order obtained by CSB after finding that it was unsupported by sufficient evidence and, thus, void ab initio, it necessarily follows that CSB is estopped from obtaining a deficiency judgment against HWA, and the trial court's order as to HWA's liability on the note must be reversed. Id.

(b) The trial court did not err, however, in granting summary judgment to CSB against Albright, whose liability on the note is based upon his unconditional personal guaranty. The guaranty states, in relevant part, as follows:

1. No act or thing need occur to establish the liability of [Albright], and no act or thing, except full payment and discharge of all indebtedness, shall in any way exonerate [Albright] or modify, reduce, limit or release the liability of [Albright]....

4. The liability of [Albright] shall be limited to a principal amount of $ Unlimited (if unlimited or if no amount is stated, [Albright] shall be liable for all indebtedness, without any limitation as to amount), plus accrued interest thereon and all attorneys' fees, collection costs and enforcement expenses referable thereto. Indebtedness may be created and continued in any amount, whether or not in excess of such principal amount, without affecting or impairing the liability of [Albright]. The Lender [ ] may apply any sums received by or available to Lender on account of the Indebtedness from Borrower or any other person (except [Albright] ), from their properties, out of any collateral security or from any other source to payment of the excess. Such application of receipts shall not reduce, affect or impair the liability of [Albright]. ...

6. ... The liability of [Albright] shall not be affected or impaired by any of the following acts or things (which Lender is expressly authorized to do, omit or suffer from time to time, both before and after revocation of this guaranty, without notice to or approval by [Albright] ): (i) any acceptance of collateral security, guarantors, accommodation parties or sureties for any or all indebtedness; ... (iii) any waiver, adjustment, forbearance, compromise or indulgence granted to Borrower, any delay or lack of diligence in the enforcement of Indebtedness, or any failure to institute proceedings, file a claim, give any required notices or otherwise protect any Indebtedness; (iv) any full or partial release of, settlement with, or agreement not to sue, Borrower or any other guarantor or other person liable in respect of any Indebtedness; (v) any discharge of any evidence of Indebtedness or the acceptance of any instrument in renewal thereof or substitution therefor; (vi) any failure to obtain collateral security (including rights of setoff) for Indebtedness, or to see to the proper or sufficient creation and perfection thereof, or to establish the priority thereof, or to protect, insure, or enforce any collateral security; (vii) any foreclosure or enforcement of any collateral security [.] ...

7. [Albright] waives any and all defenses, claims and discharges of Borrower, or any other obligor, pertaining to Indebtedness, except the defense of discharge by payment in full. Without limiting the generality of the foregoing, [Albright] will not assert, plead or enforce against Lender any defense of waiver, release, statute of limitations,res judicata, statute of frauds, fraud, incapacity, minority, usury, illegality or unenforceability which may be available to Borrower or any other person liable in respect of any Indebtedness, or any setoff available against Lender to Borrower or any such other person, whether or not on account of a related transaction. [Albright] expressly agrees that [he] shall be and remain liable, to the fullest extent permitted by applicable law, for any deficiency remaining after foreclosure of any mortgage or security interest securing Indebtedness, whether or not the liability of Borrower or any other obligor for such deficiency is discharged pursuant to statute or judicial decision. [Albright] shall remain obligated, to the fullest extent permitted by law, to pay such amounts as though the Borrower's obligations had not been discharged.
(Emphasis supplied.)

“A guarantor may consent in advance to a course of conduct which would otherwise result in his discharge, and this includes the waiver of defenses otherwise available to a guarantor.” (Citation omitted.) Baby Days v. Bank of Adairsville, 218 Ga.App. 752, 755(3), 463 S.E.2d 171 (1995). Here, Albright's personal guaranty includes an express and comprehensive waiver of any and all defenses to his liability on the entire balance due on the note. Further, even absent this broad waiver of defenses, the guaranty expressly gives Albright's consent for the “Lender” to collect on other collateral and to apply the proceeds to the amount due on the note and that “ [s]uch application of receipts shall not reduce, affect or impair the liability of [Albright].” (Emphasis supplied.) In fact, the guaranty specifically provides that Albright shall remain liable for any deficiency remaining after the foreclosure of any property securing the note, “ whether or not the liability of Borrower or any other obligor for such deficiency is discharged pursuant to statute or judicial decision. [Albright] shall remain obligated, to the fullest extent permitted by law, to pay such amounts as though the Borrower's obligations had not been discharged.” (Emphasis supplied.)

Consequently, given these provisions, we conclude that CSB's failure to obtain a valid confirmation of the foreclosure sale, pursuant to OCGA § 44–14–161, does not impair its authority to collect the difference between the amount due on the note and the foreclosure sale proceeds from Albright based upon his personal guaranty. See Baby Days v. Bank of Adairsville, 218 Ga.App. at 755(3), 463 S.E.2d 171. It follows that the trial court did not err in granting summary judgment to CSB on its suit against Albright as a personal guarantor of the note.Id.; see also Gen. Motors Acceptance Corp. v. Newton, 213 Ga.App. 405, 406–407, 444 S.E.2d 805 (1994) (The failure to confirm a nonjudicial foreclosure sale pursuant to a security deed does not prevent a creditor from seeking to enforce a contractual right to recover against additional security on the debt.); Worth v. First Nat. Bank, 175 Ga.App. 297, 297–298(1), 333 S.E.2d 173 (1985) (accord).

Judgment affirmed in part and reversed in part.

PHIPPS, P.J., and BRANCH, J., concur.